In a surprising vote, the House rejected a bipartisan effort to shield online communications from the strictures of campaign finance reform laws. H.R. 1606, the Online Freedom of Speech Act, sponsored by Rep. Jeb Hensarling (R-TX), would have codified the current Federal Election Commission (FEC) regulation that exempts the Internet from campaign finance regulations, including the soft money provisions of the Bi-Partisan Campaign Reform Act (BCRA). The current exemption was struck down by a federal court, and the FEC is now considering a new rule. On November 2, the bill failed (225-182) to get the 2/3 vote it needed to pass the House on the suspension calendar. (Under suspension rules, debate is limited to 40 minutes and no amendments are allowed. The process is generally used for non-controversial bills.) Increased Regulation Coming if Congress Does Not Act The Hensarling bill would have modified the definition of "public communications" in the Federal Election Campaign Act (FECA) to exempt communications over the Internet. BCRA amended FECA to prohibit political parties, federal candidate campaign committees, and other regulated political committees from using soft money to finance "public communications." Instead, these communications must be paid for with funds raised under the restrictions of campaign finance rules, which prohibit corporate contributions and limit individual contributions. "Public communications," under FECA, include those made via broadcast, cable, satellite, newspapers, mass mailings and phone banks. Groups other than parties or regulated political committees, such as corporations, nonprofits and unions, are also subject to the rule if their public communications "refer" to a federal candidate and are "coordinated" with parties or campaigns. Since the definition of coordination is broad, nonprofit Internet postings that link to candidate websites or forward material from campaigns are potentially subject to FEC rules. However, the FEC exempted the Internet from BCRA regulation because it felt that the omission of the Internet from the legislative definition of "public communications" indicated Congress' intent not to subject the Internet to the same restrictions applied to other mass communications. However, a federal court, in a challenge by BCRA co-sponsors Reps. Marty Meehan (D-MA) and Chris Shays (R-CT), found the exemption was not adequately explained by the FEC and sent it back for further consideration. In April the FEC proposed a new, more restrictive rule. Many public comments supported a hands-off approach to the Internet. A final rule is not expected until February 2006. The Supreme Court set high constitutional standards for Internet-based speech in its 1997 landmark decision Reno v. ACLU. Writing for the Court, Justice Stevens approved the lower court finding "that the Internet- as 'the most participatory form of mass speech yet developed' ...is entitled to the highest protection from government intrusion." The conclusion states, "The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." Opponents of the Hensarling bill, led by Shays and Meehan, argued that the bill would open the floodgates to unlimited corporate and union money being spent on Internet activities, such as blogging or advertisements. According to Democracy 21, a campaign finance group, "The blanket Internet exemption...would wrongly allow federal candidates to coordinate...the unlimited amounts of soft money to purchase Internet banner and video ads supporting their federal campaigns or attacking their opponents." Proponents of the Hensarling bill, however, held that this charge is unfounded. They argued that regulation of the Internet will have negative consequences for political speech and civic engagement. In addition, they pointed out that the general ban on corporate spending to influence federal elections would prohibit spending for advertising on the Internet. About the Vote The Rules Committee placed the bill on the calendar for floor consideration in the House at the suggestion of Rep. Zoe Lofgren (D-CA), who believed the bill, which had received considerable bi-partisan support, would be non-controversial. Surprisingly, many members rushed to the floor to object to the bill, both on its merits and the process. Rep. Barney Frank (D-MA) opposed the suspension process for the bill, maintaining,"[W]e have people here defending vigorous open debate and free speech by invoking one of the most restrictive procedures of the House of Representatives." He later stated that he would not vote for the bill because it had been offered under suspension rules. Hensarling argued that the federal government should encourage a medium that is bringing more Americans into the political process. "The newest battlefield in the fight to protect the First Amendment is the Internet," he said. "The Internet is the new town square, and campaign finance regulations are not appropriate there." He added, "I fear that bloggers one day could be fined for improperly linking to a campaign Web site, or merely forwarding a candidate's press release to an e-mail list." Next Steps If the FEC proceeds with new, more restrictive rules, it will establish grounds for continuing regulation of speech on the Internet. Hensarling has intimated that he will re-introduce the bill this session, which would allow for special review by the Rules Committee that could then consider it a "major bill" and create a rule which allows it to be placed on the House calendar. A companion bill in the Senate, S. 678, was introduced by Sen. Harry Reid (D-NV) in March and has been sent to the Senate Committee on Rules and Administration, but the Senate has yet to take it up.